Appeals Court Overturns Beall’s Grant II Use Permit [UPDATED]

On Wednesday, the Court of Special Appeals of Maryland reversed an earlier circuit court ruling that had upheld the City of Rockville Planning Commission’s August 29, 2008 granting of a use permit for the Beall’s Grant II affordable housing development to Montgomery Housing Partnership, Inc., the developers of the property. The project is essentially stopped. [UPDATE: Corrected date. Thank you Larry Giammo for pointing this out.]

In an unambiguous decision in John Anselmo, et al. v. Mayor and City Council Rockville, et al. (pdf link), the Court held that the City had not properly followed the requirements of its own Adequate Public Facilities Ordinance (APFO) and Adequate Public Facilities Standards (APFS).

Beall's Grant II Use Permit Revoked

Specifically, the Court found that City staff had relied exclusively on school capacity and enrollment figures from Montgomery County Public Schools, but that the APFO required it to take into account other data and do further analysis. Just relying on MCPS data made it appear that the development would not cause enough crowding in Beall Elementary to stop the project. Taking into account the further data pushed the enrollment number over the threshold. “[The staff report in this case," reads the decision, "on the issue of the proposed development on Beall Elementary School, particularly school demand, is wholly deficient and relied upon an incorrect standard."

This resulted in the Planning Commission issuing a decision (granting the use permit) that the Court found flawed. "[T]he Planning Commission simply incorporated the Staff’s inadequate ‘findings’ by reference, and made no independent assessment on the record of the Staff’s analysis,” according to the Court.

In its arguments, the City had evidently contended that it was unreasonable to take those further steps, but the Court decided that, “Although the [City] may very well be correct that it makes little or no common sense to follow the plain language of the APFS and perform the required analysis . . . we did not write the City’s ordinance. . . . [T]he methodology used by the Planning Commission in this case contravenes the express language of the APFO and the APFS enacted by the City. For this reason alone, the decision must be reversed.”

This was not the only issue with which the Court found fault, but it was pivotal. Read the full decision here (pdf) to get a sense of the full context.

Reactions

Former mayor Larry Giammo, one of the plaintiffs and the author of the original APFO, said:

While I am pleased with the outcome of the case, it is extremely disappointing that for the last two years the city government refused to entertain the possibility that they made a serious mistake, despite repeated attempts by me, John Hall and others to highlight the problem.

The cost to the community as a result of the city government’s incapability and arrogance is significant. Consider the tens of thousands of dollars of legal costs incurred by both the appellants and the city government, MHP’s considerable costs to develop and modify its plans several times, the hundreds of hours of time put in by community members at neighborhood meetings and in negotiating with MHP, the discord in the community across the last two years — all of this would have been avoided had the city government simply applied the law correctly from the outset.

Most concerning for me is the city government’s attitude and lack of commitment to follow its own laws. Ultimately, a city government that cares not whether it follows its own law cannot stand.

Councilmember Mark Pierzchala said:

The Appeals Court gave a no-nonsense, clear victory to the appellants. It sends a strong message to the City about how it should be applying its own laws. It is unfortunate that the compromise Bealls Grant II plan, that was arrived at with great effort by the neighborhood and MHP, can no longer go forward, all because of a projected handful of children.

The decision puts the school capacity issue back into the hands of Mayor and Council. For example, that elected body can decide whether to revise the APFO and/or the APFS (the ordinance and/or the numeric standards). In my opinion, we should anyway take a formal vote on whether to re-open the APFO/APFS, not for the Bealls Grant II issue in particular, but on broad policy grounds for the City as a whole. But given current school crowding, I doubt that any change Mayor and Council would make would materially affect the prospects for this project.

I find it valuable that this went to court. The decision has a clarity to it for City Staff, the Planning Commission, and Mayor and Council itself, that never would have come about otherwise.

Finally, the original (larger) plan had one flaw in it in my estimation. It was too big especially its massing. The compromise took it down, considerably improved its look, and improved the parking access. But I’ve said it before and I’ll say it again; the project was intended for law-abiding people who work. The residents would have added to the neighborhood and the building would have provided low-wage earners with badly needed housing.

I’m wondering what MHP will do now that the property is useless to their mission. Sell it? The zoning ordinance does allow a large building to go there.

Councilmember Piotr Gajewski said:

The question that the Council will need to grapple with is whether we are satisfied with a law that has the net effect of putting an indefinite moratorium on building family housing in much of Rockville. This, especially in the context where neither the City, nor the owners of developable property (in this one case, the charity: Montgomery Housing Partnership), have any way to cure the moratorium, as neither has any direct influence on Montgomery County Public Schools, school construction.

I urge Rockville residents to get in touch with me at [email protected] and express their views on this issue. I am sure this will also be a hot discussion topic at my next quarterly Townhall Meeting, soon to be scheduled for November.

Prospects For The Future

In order to move forward, the project would need to go before the Planning Commission again, and the Commission would need to perform the analysis required by the APFO and APFS in the way it is specified. While a petition for review is possible, that review would be at the discretion of the Court.

As Councilmember Pierzchala points out, it is unclear what MHP will want to do with its property.

As Councilmember Pierzchala and Gajewski’s comments illustrate, the Court’s ruling raises the question in some people’s minds as to whether the APFO needs to be revisited. In fact, the Court raises this explicitly in a footnote:

“The City is free to re-write its APFO . . ., should it so desire, to better reflect its policy goals regarding the impact of the development on the public schools. We, however, cannot re-write a municipal ordinance simply because the City would prefer a different outcome in this or some other case.”

Such a move to revisit the APFO is likely to face opposition. In an email sent to the Stop Beall’s Grant II group, the leaders of that organization wrote: “With the ink barely dry on this Appeals Court ruling, some members of the City Council and City Staff are already scheming to rewrite the APFO to circumvent the school limits. In the meantime, all the dire predictions the citizens warned about Beall Elementary School have come true and worse. . . . Few City officials seem to care. Why would anyone with an interest in serving the citizens of Rockville seek to weaken the APFO now?”

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